Decision Date: 07/31/95 Archive Date:
08/02/95
DOCKET NO. 93-21 155 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUES
1. Entitlement to service connection for an acquired
nervous disorder.
2. Entitlement to service connection for residuals of a
back injury.
3. Entitlement to service connection for residuals of a
right hand injury.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
P. M. Lynch, Associate Counsel
INTRODUCTION
The veteran's active military service extended from October
1943 to February 1946.
This appeal comes before the Board of Veterans' Appeals
(Board) on appeal from August 1988 and subsequent rating
decisions by the Department of Veterans Affairs (VA)
Regional Office (RO) in Nashville, Tennessee. The August
1988 rating decision denied entitlement to service
connection for residuals of a right hand injury. An April
1989 rating decision also denied entitlement to service
connection for residuals of a back injury and an acquired
nervous disorder.
REMAND
In the instant case, the most recent medical evidence of
record consists of a May 1980 statement from a private
physician, Dennis C. Workman, M.D., who diagnosed the
veteran as having severe depression. Dr. Workman had also
previously diagnosed the veteran as having a psychotic
depressive reaction, depressive neurosis and obsessional
personality. The veteran maintains that this psychiatric
disorder(s) is related to his active service.
In December 1990, the veteran's wife submitted a statement
in which she indicated that she had a telephone conversation
with Dr. Workman in August 1980. She further stated that
during this conversation, Dr. Workman offered an opinion to
the effect that her husband's psychiatric disability was
very definitely service-connected. She reported that this
conversation should be documented in Dr. Workman's files.
The United States Court of Veteran's Appeals (Court) has
held that a statement of an appellant as to what a doctor
has told him is insufficient to establish a medical
diagnosis. See Espiritu v. Derwinski, 2 Vet.App. 492
(1992); Moray v. Brown, 5 Vet.App. 211, 214 (1993). The
Court has held that such evidence is insufficient to render
a claim well-grounded. See Grottveit v. Brown, 5 Vet.App.
91 (1993). However, in Warren v. Brown, 6 Vet.App. 4, 6
(1993), the Court further concluded, in a reopening context,
that a statement by a veteran as to what a doctor has told
him may trigger the Department of Veterans Affairs' duty to
assist to contact a physician in an appropriate case. In
reviewing the claims file, the Board notes that the most
recent evidence of record from Dr. Workman is dated in May
1980, whereas the veteran's wife contended that her
conversation with the doctor took place in August 1980.
Consequently, the RO should make arrangements to obtain Dr.
Workman's complete medical records pertaining to the veteran
as the duty to assist the veteran includes obtaining all
medical evidence pertinent to his claim. See Littke v.
Derwinski, 1 Vet.App. 90 (1990); Hyder v. Derwinski, 1
Vet.App. 221 (1991).
In addition, the veteran has reported receiving treatment
for a psychiatric disorder from several physicians whose
medical records are not currently associated with the claims
folder. Accordingly, the RO should contact these doctors
and request their complete medical records with respect to
the veteran. See Littke v. Derwinski, 1 Vet.App. 90 (1990);
Hyder v. Derwinski, 1 Vet.App. 221 (1991).
The veteran has also reported that he received Social
Security Disability (SSA) benefits on a temporary basis in
1975. It has been resolved in various cases, essentially,
that although the SSA decisions are not controlling for VA
purposes, they are pertinent to the adjudication of a claim
for VA benefits, and that the VA has a duty to assist the
veteran in gathering SSA records when put on notice that the
veteran is receiving SSA benefits. Collier v. Derwinski, 1
Vet.App. 413 (1991); Murincsak v. Derwinski, 2 Vet.App. 363
(1992); Masors v. Derwinski, 2 Vet.App. 181 (1992); and
Brown v. Derwinski, 2 Vet.App. 444 (1992).
The Board also notes that the veteran was afforded a
personal hearing in December 1992. However, there is no
Hearing Officer's decision currently of record. Therefore,
the RO should attempt to locate any Hearing Officer's
decision that was rendered and associate it with the claims
file.
To ensure that VA has met its duty to assist the claimant in
developing the facts pertinent to the claims and to ensure
full compliance with due process requirements, the case is
REMANDED to the RO for the following development:
1. The RO should locate and associate with the claims file
any Hearing Officer's decision that was rendered in
conjunction with the veteran's personal hearing in December
1992.
2. The RO should contact the veteran and request that he
provide the names and addresses of all health care providers
that have treated him for any psychiatric disorder since his
discharge from service. The Board is particularly
interested in all treatment records from H.H. Edmondson,
M.D.; Dr. Bryan; Lee Tyler, Jr., M.D.; Ed Cutter, M.D.; Dr.
Adkinson; Thomas Frist, Sr., M.D.; Carlos Brewer, M.D.;
Larry Grossman, M.D.; A.R. Boyd, M.D.; John Ledbetter, M.D.;
Larry Hester, M.D.; Dr. Brittingham; Dennis C. Workman,
M.D.; and at the Harriet Cohn Clinic. The Board also
recognizes that the veteran reportedly received treatment
from some of these doctors as early as 1946. In the event
that any doctor is deceased, the veteran should also provide
the names of any successors.
3. After securing the necessary releases, the RO should
obtain legible copies of all treatment reports and hospital
treatment folders from all private health care providers
listed by the veteran that not already on file. The RO
should also obtain legible copies of all treatment records
from the VA facilities that are not already on file. The RO
should point out that actual treatment records, rather than
summaries, are pertinent. The RO should also specifically
request that Dennis C. Workman M.D. provide any treatment
notes made in conjunction with a conversation with the
veteran's wife in approximately August 1980. If any records
are not available, that fact and the reason(s) should be
annotated in the claims folder.
4. The RO should make the necessary arrangements in order
to obtain a copy of any SSA decision granting disability
benefits to the veteran. The RO should also obtain all the
records from the SSA that were used in considering the
veteran's claim for disability benefits, including any
reports of subsequent examinations or treatment. If these
records are duplicates of those already on file, that fact
should be annotated in the claims folder. Any other records
should be associated with the claims folder.
5. The RO should review the claims folder and ensure that
all of the foregoing development actions have been conducted
and completed in full. If any development is incomplete,
appropriate corrective action is to be implemented.
Once the foregoing has been accomplished, and if the
benefits are not granted to the satisfaction of the veteran,
both the veteran and his representative, if any, should be
furnished a supplemental statement of the case covering all
the pertinent evidence, law and regulatory criteria, and
should be afforded a reasonable period of time in which to
respond.
Thereafter, the case should be returned to the Board for
further appellate consideration. The veteran need take no
action until so informed. The purpose of this REMAND is
assist the veteran and to obtain clarifying information.
Adjudication of the veteran's claims of entitlement to
service connection for residuals of a back injury and
residuals of a right hand injury is deferred pending the
foregoing development.
JOAQUIN AGUAYO-PERELES
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740,
___ (1994), permits a proceeding instituted before the Board
to be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United
States Court of Veterans Appeals. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal. 38
C.F.R. § 20.1100(b) (1994).
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